National conferences (sometimes called national conventions) are usually large, unelected bodies composed of representatives nominated by a wide range of interests established to discuss constitutional and other options for the future in situations of intense national crisis in the period of transition from authoritarian (single-party or military dictatorship) regimes to more democratic regimes. They were established mainly (but not only) in French-speaking countries in Africa from the late 1980s to the early 1990s. They were usually established rapidly, in response to a crisis, and often provided the first opportunity in two or three decades for wide- ranging public discussion of the issues facing the country. Their proceedings were generally broadcast live on television and radio.

In addition to government representatives, most national conferences consisted of representatives selected by interest groups such as opposition political parties and civil associations. They tended to be much larger than constituent assemblies; the national conference in the Democratic Republic of the Congo, 1991–1992, had more than three thousand participants. In terms of the constitution-making tasks that they performed, a minority of national conferences developed and adopted a constitutional text, in much the same way that some constituent assemblies do. More commonly, however, the main constitution-making roles involved development of principles and proposals that were shaped into a constitutional text by a transitional legislature established by the national conference. And in part because they often declared themselves sovereign and replaced the existing national executive and legislature, many national conferences had extensive roles beyond constitution-making.

Organizing and managing a conference could be difficult due to the combined effects of such factors as the speed with which conferences were established; the emerging opposition to the existing regime being weak and disorganized in many cases; their large size; and the many groups represented in them.

Origins of national conferences

The origins of most national conferences can be found in intense fiscal and political crises, some involving the collapse of banks; the inability of the state to pay the salaries of public servants; national strikes; and violent clashes of unions and opposition groups with military forces. Such crises have usually been exacerbated by international community pressure—from the mid-1980s, for structural reform of economies, and from 1988 to 1989, for political reform. The extent of the crises meant that the government had little or no legitimacy and so was unable to advance reform through existing institutions. Further, in most cases, political parties had long been banned or were extremely weak, resulting in little support for establishing a new national legislature or an elected constituent assembly as the way forward. There needed to be some other institution that enabled a national government with little legitimacy to engage with a wider set of interests that had not coalesced into a legitimate opposition party or group.

The best-known national conferences are those that were held in French-speaking Africa, the first being in Benin in February 1990. Subsequently they were held in Gabon, Republic of the Congo, Mali, Niger, Togo, Democratic Republic of the Congo, Madagascar, and Chad in the period from 1990 to 1993.

French and other influences

The choice of the national conference as a constitution-making institution in so many countries in crisis in French-speaking Africa was partially influenced by the ongoing connections of those countries with France, which had been the colonial authority in all cases, and continued to maintain close links in most. The significance of an institution that was to be seen as a model for the national conference—the États Généraux, which had met in Paris in 1789 on the eve of the French Revolution—was highlighted in the 1989 bicentennial celebrations of the French Revolution held in France and widely reported in French-speaking Africa. The education of the elites that organized the national conferences in France or in French colonial schools had emphasized the importance of the revolution and the États Généraux.

On the other hand, there were other influences than French links. In particular, large gatherings with some similarities to national conferences were also part of political reform processes developing in other parts of Africa from the late 1980s in countries without a French background, including Ethiopia, Namibia, Somalia, and South Africa. Further, not all French- speaking African countries established national conferences, though there were strong calls for them in the early 1990s from opposition groups in some such countries, for example, Burkina Faso, Cameroon, the Central African Republic, Côte d'Ivoire, and Mauritania.

It is also true that the national conference has not been solely a phenomenon of French-speaking Africa. The first one in Africa was in formerly Portuguese São Tomé and Principe, where a December 1989 conference of about six hundred mainly ruling party members had a limited constitution-making role. (It made recommendations for political reform to the ruling political party.) In part because the possibility of using an institution such as the national conference was opened up as a result of the experience of French-speaking Africa in the early 1990s, countries from other historical and cultural backgrounds have also established bodies with some characteristics of national conferences. Examples include Sierra Leone [1991], Russia [1993],

Indonesia (1999–2002 process leading to amendments), and Rwanda [2003] (though most of these might better be regarded as “hybrid” bodies, as discussed below).

Some features and problems of national conferences

Some closely related features commonly found in national conferences, and some associated issues and problems arising in their operation, require brief comment. They concern:

processes for making initial decisions about establishing such a body;

the variety of roles and tasks that they carry out, with particular reference to their constitution- making tasks;

the large size, the composition by representation of interests, and the short duration of the conferences, and some difficulties associated with those characteristics, in particular

difficulties in their acting as effective deliberative bodies; and

management difficulties, including translation; and

issues about chairing national conferences and the importance of a forward-looking perspective.

All of these features and issues can readily be considered in light of the experience of the nine national conferences held in French-speaking African countries between 1990 and 1993. Some basic information about those national conferences is summarized in table 10.

In addition, brief comments are required on the constitutional outcomes of those same national conferences.

Processes for establishing national conferences

The haste with which crises forced (usually) reluctant authoritarian governments to establish national conferences meant that there was seldom any detailed agreement negotiated between the government and the loose opposition groups about the goals, composition, and operation of the conference. The lack of such agreements made the work of some of the conferences particularly difficult, with government and opposition groups taking antagonistic stands and failing to cooperate. In Togo, soldiers supporting the president surrounded the conference venue on various occasions, enforced a presidential order to suspend proceedings, and later held the transitional legislature hostage.

The main preparatory work was usually limited to establishing preparatory commissions that decided which groups would be represented. In general, they played no role in selecting representatives of such groups, it being left to the groups to decide their own selection methods. Benin was an exceptional case, where a roundtable process was established in advance of the conference in which the government and the main opposition leaders negotiated basic agreements on the process and some initial principles that the constitution to be developed by the conference would follow. In the process, a degree of understanding was established among key actors in the conference, something that probably contributed to the success of that conference compared to most others. (A case study of the constitution-making process in Benin can be found in appendix A.2. Roundtable processes are discussed in part 3.2.2.)

Role: Preparing constitutional principles or proposals, with transitional legislature established by national conference to develop and adopt new constitution

Role: Preparing and adopting draft constitution, usually requiring approval by legislature, head of state, referendum, or a combination of these

Benin

1990, 10 days

488

Yes

No

Gabon

1990, 3 weeks

2,000

Yes

No

Republic of the Congo

1991, 5 months

1,202

Yes

No

Mali

1991, 15 days

1,800

No

Yes

Niger

1991, 4 months

1,200

Yes

No

Togo

1991, 52 days

962

Yes

No

Democratic Republic of the Congo

1991-1992, 17 months (intermittent)

3,000+

?

?

Madagascar

1992, 10 days

1,400

No

Yes

Chad

1993, 3 months

830

Yes

No

Roles and tasks

National conferences were multipurpose bodies. Concerning their constitution-making tasks, there were two main variations. Most of the conferences developed some proposals about guiding principles for, or recommendations about, the text of a new constitution. Largely because of time limitations, they then usually established a transitional legislature and executive (at the same time ousting the existing executive and legislature) and gave the transitional legislature the task of developing the guiding principles or recommendations into a new constitution. (In practice, the transitional legislatures normally delegated that work to a committee.) In most instances the conference also stipulated that the new constitution be approved by a national referendum. In some instances, as in Chad in 1992, a preparatory commission readied the initial draft for the national conference to consider.

The other main variation involved the national conference developing its own draft constitution (usually together with other basic laws, such as a new electoral law). The short duration of the national conferences meant that in the few cases in which this occurred, most of the work of developing the draft had to be done in committees and working groups. While few developed a draft constitution, there were more that initially decided to take to themselves authority to do so, but when time pressures meant they could not meet for long enough to complete the work, they ended up being among the majority of conferences that delegated their authority to some form of transitional council. Chad was one such case. The national conference had authority to debate, amend, and adopt the draft received from the preparatory commission. But when the process took much longer than expected, the conference delegated the completion and adoption of the draft to a transitional legislature, which then took two years to complete the task.

When a conference did delegate authority over drafting the constitutional text to a transitional legislature, it could nevertheless influence the development of the new constitution in two main ways. The first was in establishing principles and proposals that the transitional legislature was required to take into account when determining the content of the constitution. The second was by determining the membership of the transitional legislature.

In addition to their constitution-making tasks, some national conferences addressed past crimes and human rights abuses. When they assumed sovereignty (as many did), they might also take on responsibility for establishing new transitional governmental institutions and planning elections. Without their functions being clearly defined, it could be difficult for participants to give constitution-making tasks their full attention.

Size, composition, and duration

The size, composition, and duration of conferences varied considerably. Table 10 indicates the wide range of numbers of participants in the nine conferences in French-speaking Africa, from a low of 488 in Benin to a high of more than 3,000 in the Democratic Republic of the Congo. Six of the nine cases had more than 1,000 participants. The numbers are approximate because official membership lists often changed, and because there were often many observers without voting status.

Participants were not selected through elections (as is usually the case with members of a constituent assembly). Rather, they were generally nominated to represent an institution, a political party, or an association of some kind. A huge variety of groups was represented, including labor unions, students’ and teachers’ organizations, human rights groups, professional associations, traditional leaders, religious communities, women’s and farmers’ groups, and educational institutions. The number of parties, groups, and associations represented varied from as few as about fifty (Benin) to about five hundred (the Democratic Republic of the Congo).

Generally speaking, a broadly representative organizing body (usually called a “preparatory commission”) would consult before determining the parties, sectors, and groups to be represented, and the number of seats to be allocated to each. It would then be a matter for each party, association, or group to decide on the method of appointment of the delegates to fill the number of positions allotted to it. Some political parties and associations were newly established in the weeks or months before the conference was set up, sometimes primarily for the purpose of getting conference representation. Jennifer Widner reports that it was easier to select representatives of associations and interest groups in countries where there was a tradition of national level “peak” associations, as in Europe, than it was in countries with a decentralized interest group model of the kind more common in British Commonwealth countries. The former were seen as legitimately selecting representatives, while in the latter cases every small association wanted its own representatives. In general, despite claims of national conferences being representative (in Benin the president claimed that the conference would represent “all the living forces of the nation”), the membership selection process resulted in overrepresentation of the political class and the educated elite in countries where the vast majority of the population was neither (Widner 2008).

The duration of the public sittings of conferences included in table 10 varied considerably, but most sat for much shorter periods than is usually the case with constituent assemblies. Six of the nine sat for periods of three months or less, and two for just ten days. These are remarkably short periods for a body intended to negotiate new constitutional arrangements intended to respond to deep crisis and conflict. Among the reasons for this phenomenon is the large size of the bodies, which can make them difficult and expensive to administer.

Issues arising from large size, complex composition, and short duration

The large size and short duration of national conferences are characteristics that could place obstacles in the way of their being effective bodies to deliberate on major constitutional questions. Such problems could be exacerbated where conferences have not been preceded by roundtable processes encouraging initial understandings between opposing groups. Further, short durations sometimes contributed to a tendency to rush the process, making it difficult for opposing interests to enter real negotiations at the conference. There was pressure on allied groups to make agreements and prepare draft texts in advance, or for the conference to delegate most responsibilities for developing the constitution to another body.

Large size and short duration also tended to reduce the opportunity for careful consideration of and negotiation about difficult and divisive issues. Indeed, it was often hard to organize the time needed for all delegates to speak, although there was usually pressure for that to occur. The more time that needed to be allocated to speeches by individual delegates, the less was available for serious debate about reform proposals. Further, there are particular difficulties in

managing deliberation and negotiation in large bodies, especially where there is a high degree of public scrutiny (as was the case with most national conferences). In such circumstances, with little time to speak, participants are often under pressure to take polarizing positions. The pressure can be worse if elections are likely to follow, as participants may then be under pressure to stake out clear positions that appeal to potential constituents, something that in itself can encourage the adoption of polarizing positions.

The size, composition, and short duration of these institutions can also give rise to difficulties with their management. Locating the funds needed to run large conferences was difficult, especially in situations of financial crisis (so this was a factor in the short duration of the majority of the conferences). Their large size and composition through representatives of groups contributed to their unwieldy nature. Tasks such as the registering of participants were sometimes extremely difficult. It was common for unaccredited participants to slip into parts of the proceedings. Short durations made it difficult to arrange basic services such as translation of documents and speeches, something often critically important in a multiethnic situation. In Chad, a divide that developed in the national conference between French-speaking and Arab communities was made worse by delays in translating proceedings and documents into languages other than French.

Chairing, and looking forward

The chairing of national conferences was critically important. Where chairs were positive, inclusive, conciliatory, and forward-looking, they made valuable contributions. But in circumstances in which the chair placed heavy emphasis on the conference’s role of addressing past crimes and human rights abuses, there was a tendency to look backward, with extensive airing of grievances and demands for revenge, rather than looking forward to what a new constitutional dispensation could have to offer. This was a particular problem in the Republic of the Congo and Togo, and one that was avoided (in large part by effective chairing) in Benin.

Constitutional outcomes of national conferences

While most national conferences did play important parts in processes that resulted in the adoption of new and more democratic constitutions, research by Jennifer Widner shows that the new constitutions offered lower levels of rights protections than countries that used constituent assemblies (Widner 2008). Further, they tended to fail at a higher rate (in the sense that there tended to be a return to higher levels of violence or suspension of the new constitution). Hence there is little evidence that national conferences have had a particularly positive record in terms of outcomes in constitution-making. On the other hand, it is not easy to determine the extent of the contribution to such outcomes of the constitution-making process as opposed to the kinds of economic and political circumstances existing in the countries in question at the time of these constitution-making processes.

Practical tips

This survey of the experience of national conferences gives rise to some practical suggestions for consideration by anyone considering developing an institution such as a national conference:

Careful consideration would be required about whether the circumstances are such that a national conference with features similar to those discussed here would be the most appropriate institution for undertaking significant constitution-making tasks. The institution has attractions mainly in a deeply divided crisis situation, where pressures for resolution of the situation are urgent and where there are limited aggregations of interest in established political parties. There are other institutions or procedures that can be used in some such circumstances. One is the roundtable, though it tends to be used where opposition groups are more clearly defined than has usually been the case preceding national conferences.

Given some of the difficulties experienced in operating many national conferences, in advance of establishing such an institution, a process similar to a roundtable (see part 3.2.2) should be used in an effort to establish some initial agreement on process and on the principles to be followed by the new constitution, and some political understandings among the parties involved.

The size of the membership of the conference should be kept as low as is practicable in the circumstances, as this can reduce management problems and improve the prospects of the conference being effective as a negotiating and deliberative body. Because processes of negotiation and reaching compromise can be undermined by rules and other arrangements under which all members are given time to make opening statements (often creating pressures on speakers to take polarizing positions), it may be preferable to give members opportunities to speak in committees and working groups. Further, if the conference is large, it is necessary to ensure that as much as possible of the negotiation and decision-making about constitutional issues is conducted in broadly representative (and competent) committees.

If associations and political parties are to be represented in a national conference, then to avoid problems with such bodies being established purely for the purpose of representation in the national conference, every effort should be made to agree on basic preconditions to accreditation for representation, including such things as the period for which such a body should be required to exist and the minimum number of members it must possess before it can be accredited.

Every effort should be made to ensure that the chair of the conference is a highly respected figure who is able to keep the work of the conference focused mainly on what is required for development of future arrangements that will reduce conflict and resolve problems, rather than focusing on how to address past abuses by government (there being other processes available to handle past wrongs).